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Davis v. Trierweiler

United States District Court, E.D. Michigan, Southern Division

March 31, 2018

MARIO DAVIS, #231964, Petitioner,
v.
TONY TRIERWEILER, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

         Michigan prisoner Mario Durrel Davis (“Petitioner”), acting pro se, brings a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in the Oakland County Circuit Court in 2013, Petitioner was convicted of possession with intent to deliver less than 50 grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iv), possession of less than 25 grams of heroin, Mich. Comp. Laws § 333.7403(2)(a)(v), felon in possession of a firearm, Mich. Comp. Laws § 750.224f, three counts of possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b, two counts of resisting or obstructing a police officer, Mich. Comp. Laws § 750.81d, possession of marijuana (second offense), Mich. Comp. Laws § 333.7403(2)(d) and Mich. Comp. Laws § 333.7413(2), and driving with an unlawful blood alcohol level, Mich. Comp. Laws § 257.625(1)(c). He was sentenced, as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent terms of 3 to 40 years imprisonment on the cocaine and felon in possession convictions, concurrent terms of 3 to 15 years imprisonment on the heroin and resisting or obstructing a police officer convictions, a concurrent term of 1 to 2 years imprisonment on the marijuana conviction, a concurrent term of 180 days in the Oakland County Jail on the driving conviction, and concurrent terms of 2 years imprisonment on the felony firearm convictions, to be served consecutively to the other sentences.

         In his pleadings, Petitioner raises claims concerning the legality of a search, the sufficiency of the evidence, a drug quantity error at the preliminary examination, the admission of drug profile testimony, the conduct of the prosecutor, the effectiveness of trial counsel, the state court’s jurisdiction, and the trial court’s control of the proceedings. For the reasons that follow, the court denies with prejudice the habeas petition. The court also denies a certificate of appealability.

         I. BACKGROUND

         Petitioner’s convictions arise from an incident on February 28, 2013 in Oak Park, Michigan, in which the police found him asleep at the wheel of his car. Drugs, a gun, and a significant amount of cash were in his possession. The Michigan Court of Appeals described the relevant facts, which are presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

         The police discovered defendant sleeping in his car, which was in the roadway and stopped at a red light. The vehicle was in gear and defendant's foot was on the brake. From outside the car, an officer could see a liquid-filled cup in the center console and an empty liquor bottle on the front passenger seat. When the police removed defendant from the car, they smelled both alcohol and an odor of marijuana emanating from inside.

The police searched defendant and his car, and they found marijuana on defendant's person and a gun in the car's glove compartment. They placed defendant under arrest and took him to the police station. While at the station, defendant attempted to eat a small bag of cocaine and struggled with police officers when they tried to stop him from doing so. The police also found a small packet of heroin on defendant's person during a more thorough search at the police station.
The prosecutor charged defendant with the following crimes: (1) possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv); (2) possession of less than 25 grams of heroin, MCL 333.7403(2)(a)(v); (3) felon in possession of a firearm, MCL 750.224f; (4) three counts of possession of a firearm during the commission of a felony, MCL 750.227b; (5) two counts of resisting or obstructing a police officer, MCL 750.81d; (6) possession of marijuana (second offense), MCL 333.7403(2)(d) and MCL 333.7413(2); (7) and driving with an unlawful blood alcohol level, MCL 257.625(1)(c).
At trial, defendant denied that he intended to deliver the cocaine, and asserted that he did not know of the gun's location in the car. The jury clearly did not believe defendant's protestations, and convicted him of all charges.

People v. Davis, No. 318059, 2015 WL 501928, *1 (Mich. Ct. App. Feb. 5, 2015) (unpublished). Additionally, the court adopts the more-detailed statement of facts set forth by the prosecution on direct appeal to the extent that those facts are consistent with the state court record. See Pros. App. Brf., pp. 1–13.

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals proffering briefs filed both by counsel and in pro per that essentially raised the same claims as presented on habeas review. The court denied relief on those claims and affirmed his convictions. Id. at *1–7. Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Davis, 498 Mich. 873, 868 N.W.2d 626 (2015).

         Petitioner thereafter filed his federal habeas petition. He raises the following claims as grounds for relief:

I. Petitioner’s Fourth Amendment rights were violated by the warrantless search of his vehicle and the locked glove box compartment following Petitioner’s arrest for operating under the influence of liquor; the state appellate court decision is an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).
II. The evidence was insufficient to support Petitioner’s convictions for felon in possession of a firearm and felony firearm beyond a reasonable doubt.
III. Petitioner should be granted a new trial and/or a charge reduction where the prosecutor presented material false and/or inaccurate information at the preliminary examination.
IV. The evidence of possession with intent to deliver cocaine was insufficient where the prosecutor failed to prove beyond a reasonable doubt that Petitioner intended to deliver the very small amount of cocaine.
V. Petitioner was denied a fair trial by the introduction of improper drug profile testimony.
VI. The prosecutor denied Petitioner a fair trial by asserting a fact not in evidence in order to argue Petitioner’s guilt of possession with intent to deliver heroin.
VII. Petitioner was denied a fair trial where trial counsel failed to produce crucial evidence at trial and failed to request a continuance so that Petitioner’s mother could appear and testify.
VIII. Petitioner was denied his fundamental due process protections to a fair trial under both state and federal constitutions, when the trial court arraigned Petitioner without first having acquired subject-matter jurisdiction over Petitioner, creating a jurisdictional defect, that not only voids Petitioner’s convictions, but demand his immediate release.
IX. Petitioner was denied his fundamental due process protections to a fair trial as guaranteed under both the state and federal constitutions, when the trial court failed to control the proceedings at all times which resulted in Petitioner’s void convictions.
X. Petitioner was denied his fundamental due process protections to a fair trial as guaranteed under both the state and federal constitutions, when the prosecution failed in its duty to insure a fair trial, which mandates Petitioner’s immediate release from custody and a bar to re-prosecution.
XI. Petitioner was denied his fundamental due process protections to a fair trial as guaranteed under both the state and federal constitutions, when Petitioner was denied counsel at the critical “pre-trial” stage of the proceedings for refusal to investigate the case, for refusal to object to the court’s failure to control the proceedings; and for refusal to object to the prosecutorial misconduct, all of which are tantamount to abandonment by counsel that results in structural error.

         Respondent has filed an answer to the petition contending that it should be denied because certain claims are barred by procedural default and because all of the claims lack merit.

         II. STANDARD

         Because Petitioner filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., the provisions of the AEDPA govern this case. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. §2254(d) (1996).

         “A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

         “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520–21 (citations omitted); see also Williams, 529 U.S. at 409. “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,’ and ‘demands that state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333 n.7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

         A state court’s determination that a claim lacks merit “precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to § 2254(d), “a habeas court must determine what arguments or theories supported or . . . could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id. Thus, in order to obtain federal habeas relief, a state prisoner must show that the state court’s rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id.; see also White v. Woodall, __ U.S. __, 134 S.Ct. 1697, 1702 (2014). Federal judges “are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.” Woods v. Donald, __ U.S. __, 135 S.Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. Woods v. Etherton, __ U.S. __, 136 S.Ct. 1149, 1152 (2016).

         Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the state court’s decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court “has held on numerous occasions that it is not ‘an unreasonable application of clearly established Federal law’ for a state court to decline to apply a specific legal rule that has not been squarely established by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125–26 (2008) (per curiam)); Lockyer, 538 U.S. at 71–72. Section 2254(d) “does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.’” Harrington, 562 U.S. at 100. Furthermore, it “does not require citation of [Supreme Court] cases-indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16.

         The requirements of clearly established law are to be determined solely by Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly established Federal law as determined by the Supreme Court’” and it cannot provide the basis for federal habeas relief. Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per curiam); see also Lopez v. Smith, __ U.S. 135 S.Ct. 1, 2 (2014) (per curiam). The decisions of lower federal courts, however, may be useful in assessing the reasonableness of the state court’s resolution of an issue. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F.Supp.2d 354, 359 (E.D. Mich. 2002) (Tarnow, J.).

         A state court’s factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360–61 (6th Cir. 1998). Lastly, habeas review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         III. ...


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